Peter Saunders v. Frank A. Eyman, as Warden, Arizona State Prison ( 1977 )

WALLACE, Circuit Judge:

Saunders, an Arizona state prisoner, filed a petition for habeas corpus seeking release from prison. Initially, the district court ordered that a writ should issue on Saunders behalf. The state appealed. We vacated the order and remanded the ease for reconsideration in light of our intervening decision in Harris v. Procunier, 498 F.2d 576 (9th Cir.) (en banc), cert. denied, 419 U.S. 970, 95 S.Ct. 235, 42 L.Ed.2d 186 (1974). On remand the district court correctly determined that because Saunders was represented by retained counsel at the time he pleaded guilty in state court, he was precluded from alleging deprivation of constitutional rights that occurred prior to entry of the plea. See Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). The issue on remand was accordingly narrowed to whether the advice of Saunders’ counsel to plead guilty was “within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). After a hearing, the district judge found that Saunders had failed to carry his burden of showing that he did not have effective assistance of counsel. He therefore denied the petition. We affirm.

In this circuit, it is clearly the law that a habeas petitioner bears the burden of showing that he did not have effective assistance of counsel. Wright v. Craven, 412 F.2d 915, 917 (9th Cir. 1969); Kruchten v. Eyman, 406 F.2d 304, 312 (9th Cir. 1969), vacated on other grounds, 408 U.S. 934, 92 S.Ct. 2853, 33 L.Ed.2d 748 (1972). To sustain that burden the petitioner must show that counsel was so incompetent or inefficient as to make the trial a farce or a mockery of justice. E.g., United States v. Martin, 489 F.2d 674, 677 (9th Cir. 1973), cert. denied, 417 U.S. 948, 94 S.Ct. 3073, 41 L.Ed.2d 668 (1974); Wright v. Craven, supra, 412 F.2d at 917; Dalrymple v. Wilson, 366 F.2d 183, 185 (9th Cir. 1966); Thomas v. United States, 363 F.2d 849, 851 (9th Cir. 1966); Bouchard v. United States, 344 F.2d 872, 874 (9th Cir. 1965). As stated by Saunders, the issue is “whether counsel was so ineffective that his representation was a ‘farce or a mockery of justice’ or is ‘shocking to the conscience of the court.’ ”

In an attempt to meet his burden of proof, Saunders presented evidence in the evidentiary hearing that his counsel failed to investigate adequately and to consider crucial aspects of the case, including (1) the circumstances surrounding Saunders’ interrogation and confession, (2) possible defenses of diminished capacity or insanity, and (3) his remand from juvenile to adult court. Most of the evidence presented consisted of Saunders’ own testimony and necessarily so: many of the key figures in the 1951 state court proceeding — including his counsel and the sheriff — are now dead. In response to this evidence, the district court found that Saunders had failed to prove that counsel did not “consider important aspects of petitioner’s case [presumably those listed above] prior to petitioner entering his guilty plea.” In short, it appears that the district court disbelieved part or all of Saunders’ testimony and found the remaining evidence insufficient to satisfy Saunders’ burden of showing defective assistance of counsel.

Saunders agrees that in reviewing this finding — i.e., that Saunders did not prove that defense counsel failed to investigate and consider crucial aspects of Saunders’ case — we are bound by the clearly erroneous standard, Rule 52(a), Fed.R.Civ.P. That rule requires that we give “due regard to the opportunity of the trial court to judge of the credibility of the witnesses.”

After thoroughly reviewing this case and considering the district court’s appraisal of the credibility of Saunders’ testimony, we are not “left with the definite and firm conviction that a mistake has been committed.” United States v. U. S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Viewing the evidence in a light most favorable to the government as the prevailing party, United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 84 (1974), it appears that Saunders, then 16 years old, shot Fenton in the back of the head twice while the latter was fishing near Yuma, Arizona, in February 1951. After the shooting, Saunders stole his victim’s money and truck. He was subsequently apprehended on March 15, 1951, in Phoenix when he attempted to sell the truck. At the time of the apprehension, Saunders admitted killing Fenton, but claimed that the death was accidental. He took officers to the scene and helped locate the body.

A murder complaint was filed in the justice court. Because of his age, Saunders was remanded to the juvenile court. From there, he was remanded to the custody of the justice court. These successive remands occurred on the same day.

On March 17, County Attorney Ingraham interviewed Saunders and advised him of his rights, after which Saunders confessed that the killing was intentional and that the motive was robbery. Saunders also admitted the crime under oath at a Coroner’s Inquest held March 19.

Saunders’ father was contacted in Labrador. After arriving in Yuma, he retained defense attorney Mansfield on March 27 to represent his son. Mansfield held an extensive interview with the father, reviewing in depth the family background. He also spent considerable time with the County Attorney discussing the facts of the case and a possible plea. Due to his accidental death, Mansfield cannot testify as to the number of contacts he had with Saunders, nor do his files reflect this information. He did negotiate a plea to save his client from a possible death sentence. The change of plea occurred on March 29.

Saunders’ first and primary contention is that Mansfield failed to examine the possibility of a coerced confession. Even from the cold record, Saunders’ testimony that his confession was coerced by physical violence appears incredible, or at least suspect, especially when measured against the testimony of former Deputy Sheriff Meador, Judge Nabours (former Chief Deputy County Attorney) and Mr. Ingraham and also against Saunders’ own testimony at the 1951 Coroner’s Inquest. If there were no coercion, Mansfield’s decision not to pursue that aspect of Saunders’ case does not evidence incompetency.

As noted above, Saunders also alleges that his counsel failed to consider properly the juvenile court remand. We believe that the facts of the remand do not demonstrate such a clear violation of then applicable Arizona law that an attorney’s decision not to challenge the remand establishes incompetency. In the first instance, the district court could conclude that there was no obvious failure to comply with the Arizona Juvenile Code. Compare 1941 Arizona Session Laws, ch. 80, § 7(a) at p. 159 with id. § 7(b) at p. 159 and id. § 10 at p. 161-62. In 1951, the Arizona Constitution, art. 6, § 6, granted the juvenile court judge discretion regarding the suspension of criminal proceedings. The judge was not bound by any rigid principles of law. See Vigileos v. State, 84 Ariz. 404, 408, 330 P.2d 116 (1958). Also, at the evidentiary hearing before the district court, Judge Nabours testified that in 1951 the juvenile court practice was informal, see also 1941 Arizona Session Laws, ch. 80, § 10 at pp. 161-62, and the remand decision was viewed as one totally within the discretion of the juvenile court judge. Further, proceedings of short duration leading to a remand order have been upheld in Arizona, see Eyman v. Superior Court, 9 Ariz.App. 6, 448 P.2d 878 (1968), a fact which reinforces our view that Saunders’ remand was not clearly open to attack at the time Mansfield entered the case.

Regarding counsel’s alleged failure to consider properly an insanity defense, the record contains evidence that Saunders’ post-arrest conduct was not of the type that would raise any suspicions of his sanity or capacity.

The record contains testimony that Mansfield was then in his early thirties and had been practicing law seven or eight years. Although he did not “do a great deal of criminal law practice,” there was testimony, which the district judge could accept, that in this case Mansfield handled the matter “very conscientiously” and that his representation of Saunders was “competent.”

On these facts,¹ there can be only one conclusion of law. Mansfield’s advice to Saunders to plead guilty and seek a life sentence — rather than pursue a jury trial with its greater uncertainty regarding a possible death sentence — was “within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, supra, 397 U.S. at 771, 90 S.Ct. at 1449. See Kruchten v. Eyman, supra, 406 F.2d at 312-13.

AFFIRMED.

1 . While our Brother Ely would draw inferences from a newspaper article and the lack of notations in an attorney case file, clearly the district judge need not accept newspaper articles nor must he, as the trier of fact, conclude that an attorney does no more than that about which he makes a note in a file.